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In The Wake Of Equality – The Realization of The Rights of Transgender Persons in India

In The Wake Of Equality – The Realization of The Rights of Transgender Persons in India

Authored By:                                                 

Hitabhilash Mohanty

INTRODUCTION

The right to recognition as a person before the law is guaranteed in numerous international human rights conventions, and is a fundamental aspect of affirming the dignity and worth of each person. Legal gender recognition is also an essential element of other fundamental rights including to privacy, to freedom of expression, to be free from arbitrary arrest, and rights related to employment, education, health, security, access to justice, and the ability to move freely.

UNDERSTANDING THE TERMINOLOGY

It is essentially a word of western origin and is now used as an umbrella term in the sense that it refers to all gender-variant people and includes many different identities.[1] A NACO Report considers the term ‘trans-gender’ as the symbolic representation of crossing the boundaries, and it has been derived from the two different languages; the Latin word ‘trans’ and the English word ‘gender’.[2] ‘Transgender’ has been defined as:

“An umbrella term that refers to all identities or practices that cross over, cut across, move between, or otherwise queer socially constructed sex/gender binaries. The term includes, but is not limited to, transexuality, hetrosexual transvestism, gay drag, butch lesbianism and such non-europian identities as the Native American berdache or the Indian Hijra.”[3]

A report prepared by the United Nations Development Program (UNDP) enunciates that the term transgender is wide enough to include pre-operative, post-operative and nonoperative ‘transsexual’ people (who strongly identify with the gender opposite to their biological sex), male and female ‘cross-dressers’ and men and women, regardless of sexual orientation, whose appearance or characteristics are perceived to be gender-atypical.[4] In India, transgender people include Hijra, Kinnar (eunuchs), shiv-shakti, jogappas, sakhi, Jogtas and Aradhis. Scholars have expressed that in fact, there are many who do not belong to any of the groups but are transgenders persons individually. Transgender people may live full-or-part time in the gender role opposite to their biological sex.[5]

LEGAL RECOGNITION OF TRANSGENDER RIGHTS IN INDIA

The transgender community in India were an ignored segment of the society and faced deep and pervasive discrimination, despite protection under various provisions of the Constitution. In April, 2014, Supreme Court in its landmark judgment of NALSA v. Union of India[6] (hereinafter the NALSA judgment) ushered in the recognition of various civil and political rights of the transgender community. The genesis of this recognition lies in the acknowledgment of equal worth of every person and the right of choice given to an individual which is the inseparable part of human rights.[7]

The judgment was delivered by a division bench of the Supreme Court of India, comprising of K.S. Radhakrishnan J. and Dr. A.K. Sikri J. The National Legal Services Authority (NALSA) had approached the court through a writ petition, on behalf of transgender community. Their primary argument was against the state enforced hetro-normativity[8] and recognition of only binary genders of male and female under Indian law. The petitioners sought for legal measures to cater to the needs of the transgender in tune with the various constitutional rights.

The court while drawing historical and cultural significance of transgender groups highlighted the trauma undergone by the members of this community. The judgment drew a distinction between the concept of sex and gender identity, which refers to an individual self identification as a man, woman, transgender or other identified category. The court referred to various international efforts[9] including the Yogyakarta principles[10] and the fundamental rights provided under the part III of the Constitution of India, to afford recognition to the rights of the transgenders. The court held that hijra, eunuchs, aravanis and thirunangi, kothi, jogtas/jogappas, shiv-shakthis etc. in addition to binary be treated as third gender. The court also recognised transgenders right to self-determination. Apart from other significant directions, the court directed the state to treat transgenders as socially and educationally backward classes (hereinafter SEBCs) and extend all kinds of reservation as available to members of Other Backward Classes (hereinafter OBCs) category.

Knowing the beneficiaries of reservation is significant for its proper implementation. Hence, it is important to understand the meaning and definition of the term ‘transgender’, especially in the context propounded by the NALSA judgement. Generally speaking, the term transgender refers to people who deviate from social gender norms.[11] Typically, a transgender person is someone whose sense of gender is different from their physical characteristics or the sex assigned to him at the time of birth.[12]

LEGAL GAINS FOR THE TRANSGENDER COMMUNITY THROUGHOUT INDIA

While the struggle at the level of the Courts continues, some important advances have been made in transgender rights without much fanfare in some ways amounting to a silent revolution. In India, one’s gender and sex is fixed at birth and is used in all subsequent legal transactions. Thus, binary classification of gender into male and female that does not recognise a third gender category, as the Peoples’ Union for Civil Liberties (PUCL) Report on ‘Human Rights Violations against the Transgender Community’[13] argues, turns the transgender status of hijras into that of a legal non-entity. Only two sexes – male and female – are recognised in Indian civil law.[14] Furthermore, India does not recognise sex changes on identity cards, which makes it impossible for an intersex person or hijra to choose a legal female identity in most states. Lack of legal recognition has important consequences in getting government ration (food-price subsidy) shop card, passport, and bank account. The PUCL report recommends that “Civil rights under law such as the right to get a passport, ration card, make a will, inherit property and adopt children must be available to all regardless of change in gender/sex identities.”[15] Furthermore, The UNDP Report (2010) ‘Hijras/Transgender in India: HIV, Human Rights and Social Exclusion’ recommends:[16] “Develop action steps toward taking a position on legal recognition of gender identity of Hijras/TG need to be taken in consultation with Hijras/TG and other key stakeholders. Getting legal recognition and avoiding ambiguities in the current procedures that issue identity documents to Hijras/TG are required as they are connected to basic civil rights such as access to health and public service, right to vote, right to contest elections, right to education, inheritance rights, and marriage and child adoption”. There have been major inroads into the otherwise rigid gender classification system in India amounting to a silent revolution in sexuality rights.

ELECTIONS

For the purposes of securing an Election ID card, persons can use the category called ‘Other’[17]. Also, when it comes to contesting elections as women, it must be noted that openly transgender persons have contested elections as women in India. The Madhya Pradesh High Court in a ruling in Kamala Jaan’s case ruled that hijras are not women and are not entitled to contest elections within the category of seats reserved for women.[18] However in 2009, Veena S contested elections for the Bangalore Municipality.[19] Veena herself was not the first transgender person to contest local elections with at least eleven transgender persons before Veena taking the electoral plunge and winning the elections.[20]

ID DOCUMENTS

The recognition of transgender people is seen in new identity documents such as the Unique Identification Number with the gender category including male, female and transgender[21] (though, access to this still has been limited).[22] It is estimated that over 19,000 transgender people across the country have been issued Aadhaar cards that recognise them as a third gender.[23]

PROPERTY

In the opinion of the MP High Court, a hijra woman was allowed to receive property from her Guru because the court accepted that the community cannot transfer property to anyone outside of the community. In this ruling the court explicitly acknowledges the existence of a distinct ‘eunuch’ class with its own customs and rituals that must be respected.[24]

HARASSMENT

In Jayalakshmi v. The State of Tamil Nadu &Ors the Madras High Court was confronted with a case where a male-to-female transgender person was harassed by the police to the extent that that person self-immolated and died. The court held that the State had to pay compensation for the harassment by its police force and also directed the institution of disciplinary proceedings against the officers.

SUMMARY OF THE TRANSGENDER PERSONS (PROTECTION OF RIGHTS) ACT, 2019

Non-recognition of the Third Gender in the Indian legal framework has resulted in systematic denial of equal protection of law and widespread socio-economic discrimination in society at large as well as in Indian workplaces. In the wake of the Nalsa Judgment, the Indian parliament recently enacted the Transgender Persons (Protection of Rights) Act,2019 (the ‘Act’).

‘Transgender’ as defined in the Act, refers to and includes all individuals whose gender does not conform or match with the gender assigned to them at birth and includes trans-man and trans-woman (whether or not they have undergone sex reassignment surgery (‘SRS’) and individuals with socio-cultural identities such as ‘kinner’, ‘hijra’, ‘aravani’ and ‘jogta’.

Drawing a distinction between actions that require immediate implementation such as introducing social welfare schemes and actions that require a long-term approach, such as changing the negative attitude of the general public, the legislature has placed positive obligations on all concerned Stakeholders. ‘Stakeholders’ include the central government, state governments and establishments (as defined under the Companies Act, 2013).

These obligations take the form of guarantees (from Chapter II to Chapter VIII). They include the following.

1. Prohibition of discrimination against Transgender individuals

Discrimination includes denial or discontinuation of access to or enjoyment of, or unfair treatment in:

  • educational establishments;
  • employment;
  • healthcare services;
  • any goods, accommodation, service, facility meant for public use;
  • right of movement;
  • right to purchase reside, purchase, rent or otherwise occupy property;
  • opportunity to stand for or hold public office; and
  • government or private establishment in whose care or custody a transgender person is.

2. Recognition of identity

Recognition of transgender individuals’ identity and conferring the right and entitlement to obtain a certificate of identity as proof of recognition from the relevant state authorities.

3. Welfare measures

Formulation and enactment of welfare measures, schemes, programmes for education, social security, healthcare, effective participation in the society and facilitating access to these schemes and welfare measures by appropriate state governments.

4. Rehabilitation and right of residence

Rescue and rehabilitation measures, including right of residence conferred by the relevant state governments.

5. Obligations on Establishments

‘Establishment’ means any body or corporate authority established by or under a central or state act or any body owned, controlled or aided by the government or any company or body corporate or association or body of individuals, firm, cooperative, other society, trust, agency or institution.

Chapter V requires Establishments to ensure compliance with the Act and provide facilities as may be prescribed by the Act from time to time. In matters relating to employment including but not limited to recruitment, promotion and other related issues, Establishment must not discriminate against transgender individuals and must provide for an adequate grievance redressal mechanism to deal with complaints relating to violations of the Act and in the workplace.

6. National Council for Transgender Persons

The constitution and establishment of the National Council for Transgender Persons. The National Council will perform the functions assigned to it under the Act, including but not limited to advising concerned Stakeholders on formulation of policies, programmes, legislations and welfare measures, monitoring and evaluating the impact of policies and programmes designed for ensuring participation of Transgenders and ensuring redressal of grievances of Transgender Persons among others.

7. Offences and penalties

The Act introduces penalties for offences against transgender individuals.

Anyone who:

  • compels or entices a transgender individual into forced or bonded labour (excluding compulsory government service for public purposes);
  • denies a transgender person the right of public passage or use of public places;
  • forcefully removes a transgender person from a household, village or other place of residence;
  • commits an acts or intends to do an act causing physical, sexual, verbal, emotional or economic harm and/or abuse against a transgender person;

shall be punished with imprisonment which may vary between six months to two years, with a fine.

The Act is not an all-encompassing piece of legislation and is only a preliminary step on the part of the legislature, affording legal recognition to the Third Gender under our legal framework. The extent to which the Stakeholders concerned will take positive steps to facilitate inclusion and attempts to make Transgenders productive members of the society, will be a slow and challenging process. The Act does not lay down consequences of the newly acquired gender status on their rights and entitlements in various spheres and aspects of life and is largely silent on the consequences of non-compliance and accountability for Stakeholders.

PROCESS OF OBTAININGTHE IDENTIFICATION PROOF

India’s new legislation sets up a two-step process.

  1. The Act requires an individual to apply for a “transgender certificate” from the District Magistrate where they live. This can be done on the basis of a person’s self-declared identity. Then, a certificate holder can apply for a “change in gender certificate,” which signals to authorities to change their legal gender to male or female.
  2. The Act requires the person to provide proof of surgery, issued by a hospital official, to the District Magistrate for a second evaluation, and the official must be “satisfied with the correctness of such certificate.”

KEY RECOMMENDATIONS TO STRENGTHEN THE ACT

Preparing the Indian workspace for an inclusive approach towards transgender individuals is going to be an uphill task, as accommodating societal change of this magnitude has always been a slow process in India.

Improving the status of the transgender community has to be a collective effort and empowering this community in the workplace would go a long way in reducing social stigmas and also improving their economic position. Although the Act only puts an onus and does not place legal requirements on the Stakeholders concerned, in view of the changing dynamic, some of the steps that Establishments and organisations can undertake to create a more equitable and inclusive environment are set out below.

Sensitisation and education

Prior to introducing any change in the system, it will be imperative for organisations to educate workforces around gender inclusivity, assimilation in workplace and greater acceptance for the innate character and personality of transgender individuals in the corporate environment.

Policy review

Organisations must review and update their existing HR, administrative, recruitment and employee benefit policies and manuals. It would be beneficial to solicit and incorporate suggestions from a person from the transgender community, to ensure that the policies reflect appropriate ways for an organisation to approach the Third Gender.

Sex/gender reassignment surgery (SRS) transition

Undergoing SRS transition is not only a difficult process but also a very traumatic one both physically and psychologically. Organisations must put in place policies that provide transition support, not only in terms of paid leave, but also sensitising the remaining workforce regarding an employee’s transition, providing them with rehabilitation support and counselling.

Anti-harassment policies

Analogous to the requirements under the POSH Act (The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013), organisations must put in place adequate grievance redressal mechanisms for transgender individuals to deal with the harassment complaints, while keeping the identity of the complainant anonymous.

Gender neutral washrooms

Employees should have access to washrooms that are appropriate for their identity. Trans women are often subject to humiliation and harassment as they are forced to use male washrooms.

Recruitment

Organisations must keep in mind that transgender individuals have been subject to years of discrimination leading to social, economic and skill deficits, and therefore recruitment criteria must be revised accordingly. Organisations must also endeavor to provide training programmes to enhance skills.


[1]Jillian Todd Weiss, “Teaching Transgender Issues: Global Social Movements Based on Gender Identity” 358 A Twenty-First Century Approach to Teaching Social Justice: Educating for Both Advocacy And Action 27 (2009).

[2]Laxmi T, Gauri S., et. al., “Transgender- A Hijra strategy” NACO available at: http://naco.gov.in/sites/default/files/4.%20TG_paper_NACO%20shortversion.pdf

[3]Susan Stryker, “The Transgender Issue: An Introduction,” 4(2) GLQ: A Journal of Lesbian and Gay Studies 149 (1998).

[4]United Nations Development Programme, Hijras/Transgender Women In India: HIV, Human Rights And Social Exclusion, India, (Dec. 2010), available at: http://www.undp.org/content/dam/india/docs/hijras_transgender_in_india_hiv_human_rights_and_social_exclus ion.pdf

[5]Rekha Pande, “Being Eunuch, the violence faced by Hijra’s inviolved in sex work- A case study” in Asmita Bhattacharyya, Sudeep Basu (ed.), Marginalities in India: Themes and Perspectives 210 (Springer, Singapore, 2017).

[6](2014) 5 SCC 438.

[7]Id. para 84. Various International Human Rights instruments enshrine the right to equality and non-discrimination as core principles of human rights. See generally, United Nations Charter, art 6 of The UniversalDeclaration of Human Rights (UDHR), art 16, 17 of the International Covenant on Civil and Political Rights, 1966 (ICCPR).

[8]The term implies the presence of normative principles accepting or supporting only heterosexuality in social institutions. It is based on an assumption that all humans are heterosexual. The term was coined in 1991 by Michael Warner. See Jillian T. Weiss, “Heteronormativity” International Encyclopaedia of the Social Sciences, available at: http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/heteronormativity

[9]Legislative efforts of various countries like United Kingdom, Australia, South Africa, Netherlands, Germany, Canada, Argentina etc. have been discussed.

[10]The Yogyakarta Principles are the principles on the application of international human rights law in relation to sexual orientation and gender identity. The principles state that sexual orientation and gender identity are integral to every person’s dignity and humanity and must not be the basis for discrimination or abuse, available at: http://data.unaids.org/pub/manual/2007/070517_yogyakarta_principles_en.pdf

[11]Shilpa Khatri Babbar, “The Socio-Legal Exploitation of the Third Gender in India” 21(5) IOSR Journal of Humanities and Social Science 12-18 (May, 2016).

[12]Siddharth Narrain, “Crystallising Queer Politics – The Naz Foundation Case and Its Implications for India’s Transgender Communities” 2 NUJS Law Review 455 (2009). A person may be a female-to-male transgender (FTM) in that he has a gender identity that is predominantly male, even though he was born with a female body. Similarly, a person may be a male-to-female transgender (MTF) in that she has a gender identity that is predominantly female, even though she was born with a male body or physical characteristics

[13]People’s Union for Civil Liberties (Karnataka), Human Rights Violations against the Transgender Community: A Study of Kothi and Hijra Sex Workers in Bangalore, India”, Bangalore 2003, available at www.sangama.org/files/sexual-minorities.pdf

[14]Sood, N. (2010). Transgender People’s Access to Sexual Health and Rights: A Study of Law and Policy in 12 Asian Countries. Asian-Pacific Resource and Research Centre for Women (ARROW).

[15]People’s Union for Civil Liberties (Karnataka), Human Rights Violations against the Transgender Community: A Study of Kothi and Hijra Sex Workers in Bangalore, India”, Bangalore 2003, available at www.sangama.org/files/sexual-minorities.pdf

[16]http://indiagovernance.gov.in/files/hijras_transgender_in_india_hiv_human_rights_and_social_exclusion.pdf

[17]During months of hearings, the election commission heard written and oral testimony (or “representations”) from “various individuals and interest groups”, according to TOI. Election commissioner S Y Qureishi explained, “When the representation came, we readily agreed. Why should a section of the population be left out? The decision will help in mainstreaming a section of the population. I am sure even government would like to do the same” http://lgbtqnews.com/gaynews/eunuchs-transsexuals-given-third-gender-option-india-electionforms_BYN.aspx

[18]http://ai.eecs.umich.edu/people/conway/TS/PUCL/PUCL%20Report.pdf at p. 53.

[19]http://bangalore.citizenmatters.in/articles/view/1851-praja-rajakiya-vedike-bbmp-elections-candidates accessed on 28 April 2010.

[20]Table of successful candidates on file with the Alternative Law Forum.

[21]See Demographic Data Standards and Verification procedure (DDSVP) Committee Report, Unique Identification Authority of India, December 2009.

[22]http://www.deccanherald.com/content/250353/getting-aadhaar-card-big-challenge.html

[23]http://www.deccanherald.com/content/249637/over-19000-transgenders-issued-aadhaar.html

[24]Illyas and Others v. Badshah, alias Kamla. AIR 1990MP 334.

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